DANIEL TOUBY AND LYRISSA TOUBY, PETITIONERS V. UNITED STATES OF
AMERICA
No. 90-6282
In The Supreme Court Of The United States
October Term, 1990
On Writ Of Certiorari To The United States Court Of Appeals For The
Third Circuit
Brief For The United States
TABLE OF CONTENTS
Questions Presented
Opinions below
Jurisdiction
Statute and regulation involved
Statement
A. The Controlled Substances Act
B. The temporary listing of Euphoria as a schedule
I controlled substance
C. The facts and proceedings in this case
Summary of argument
Argument:
I. Section 201(h) does not violate the Constitution's
requirement that "all legislative powers"
shall be vested in Congress
A. Section 201(h) satisfies established delegation
standards
B. The Constitution does not prohibit Congress
from authorizing the Attorney General to
exercise the authority conferred by Section
201(h)
C. Congress has provided constitutionally adequate
judicial oversight of Section 201(h)
scheduling decisions
II. The Attorney General lawfully subdelegated his
Section 201(h) authority to the Administrator
of the Drug Enforcement Administration
Conclusion
OPINIONS BELOW
The opinion of the court of appeals (J.A. 27-66) is reported at 909
F.2d 759. The opinion of the district court (J.A. 2-26) is reported
at 710 F. Supp. 551.
JURISDICTION
The judgment of the court of appeals was entered on July 27, 1990.
A petition for rehearing was denied on August 21, 1990. The petition
for a writ of certiorari was filed on November 19, 1990, and was
granted on January 14, 1991. The jurisdiction of this Court rests on
28 U.S.C. 1254(1).
STATUTE AND REGULATION INVOLVED
Section 201(h) of the Controlled Substances Act, 21 U.S.C. 811(h),
and 28 C.F.R. 0.100(b) are set out in Appendix A to this brief.
QUESTIONS PRESENTED
1. Whether Section 201(h) of the Controlled Substances Act
unconstitutionally delegates to the Attorney General the authority to
list a drug temporarily as a schedule I controlled substance.
2. Whether the Attorney General lawfully delegated his authority
under Section 201(h) to the Administrator of the Drug Enforcement
Administration.
STATEMENT
Section 201(h) of the Controlled Substances Act, 21 U.S.C. 811(h),
provides the Attorney General with a streamlined procedure for
temporarily listing a drug as a schedule I controlled substance when
he finds that the action is "necessary to avoid an imminent hazard to
the public safety." On October 15, 1987, the Attorney General's
delegate, the Administartor of the Drug Enforcement Administration
(DEA), used that authority to list 4-methylaminorex -- a stimulant
known in street vernacular as "Euphoria" -- temporarily as a schedule
I controlled substance pending proceedings for permanent listing.
While the temporary listing was in effect, petitioners Daniel and
Lyrissa Touby were arrested and charged under the Controlled
Substances Act with conspiring to manufacture and knowingly
manufacturing 4-methylaminorex. Petitioners do not contend that
Euphoria cannot be listed as a schedule I controlled substance, and
since their arrest the drug has been permanently listed as such. They
challenge their convictions solely on the theory that the Controlled
Substances Act's temporary listing provisions unconstitutionally
delegate legislative power to the Executive Branch and, alternatively,
that the Attorney General unlawfully delegated his authority under the
statute to the Administrator of the DEA.
A. The Controlled Substances Act
1. In 1970, Congress enacted the Comprehensive Drug Abuse
Prevention and Control Act, Pub. L. No. 91-513, 84 Stat. 1236. Title
II of that enactment, known as the Controlled Substances Act (CSA),
regulates the importation, manufacture, distribution, possession, and
improper use of substances that have a detrimental effect on public
health and welfare. See CSA Section 101, 21 U.S.C. 801. It
establishes five schedules of controlled substances, includes a list
of substances initially placed on each schedule, and contemplates the
periodic reevaluation of the initial lists and the addition of other
substances to the schedules. See CSA Section 202, 21 U.S.C. 812.
Once a substance is placed on one of the schedules, manufacturers,
distributors, and dispensers of the substance must comply with various
regulatory requirements. See CSA Sections 301-310, 21 U.S.C. 821-830.
Unauthorized possession of the substance with intent to distribute it
is a criminal offense. CSA Section 401(a), 21 U.S.C. 841(a). /1/
Section 201(a) of the Act, 21 U.S.C. 811(a), grants the Attorney
General authority to add substances to the schedules of controlled
substances through a rulemaking on the record pursuant to provisions
of the Administrative Procedure Act, 5 U.S.C. 553(c), 556, 557.
Section 201(b) requires the Attorney General to receive the
recommendation of the Secretary of Health and Human Services (HHS)
before initiating such a rulemaking respecting a substance proposed
for scheduling as a controlled substance. 21 U.S.C. 811(b). The
Secretary's recommendations are controlling as to scientific and
medical matters, and a substance cannot be placed on the schedules if
the Secretary recommends against listing it. Section 201(c)
identifies eight factors that the Attorney General and the Secretary
of HHS must consider in making their determinations whether a
substance should be listed on a controlled substance schedule. 21
U.S.C. 811(c). /2/
Section 202(b) of the Act identifies the specific criteria for
adding a substance to each of the schedules. With exceptions not
pertinent here, that provision states that "a drug or other substance
may not be placed in any schedule unless the findings required for
such schedule are made with respect to such drug or other substance."
21 U.S.C. 812(b). The findings required to add a substance to
schedule I are as follows:
(A) The drug or other substance has a high potential for
abuse.
(B) The drug or other substance has no currently accepted
medical use in treatment in the United States.
(C) There is a lack of accepted safety for use of the drug or
other substance under medical supervision.
CSA Section 202(b)(1), 21 U.S.C. 812(b)(1). Thus, to add a substance
to schedule I, the Attorney General must determine through a
rulemaking that the substance meets those three criteria in light of
the eight factors identified in Section 201(c), 21 U.S.C. 811(c). The
scheduling of a substance under Sections 201(a) and 202(b) is subject
to judicial review in a court of appeals upon petition by any
"aggrieved" person. See CSA Section 507, 21 U.S.C. 877. /3/
2. In 1984, Congress enacted the Comprehensive Crime Control Act,
which amended the Controlled Substances Act in various respects. See
Controlled Substances Penalties Amendments Act of 1984, Pub. L. No.
98-473, Tit. II, ch. V, 98 Stat. 2068. Among the amendments, Congress
added a new subsection, Section 201(h), to the Controlled Substances
Act. That new subsection, codified at 21 U.S.C. 811(h), establishes
an expedited procedure for temporarily listing a schedule I substance
when the Attorney General finds that such expedition "is necessary to
avoid an imminent hazard to the public safety." Section 201(h) "is
designed to allow the Attorney General to respond quickly to protect
the public from drugs of abuse that appear in the illicit traffic too
rapidly to be effectively handled under the lengthy routine control
procedures." S. Rep. No. 225, 98th Cong., 1st Sess. 264-265 (1983).
Section 201(h)(3) directs the Attorney General to make the
"imminent hazard" determination based on three factors: (1) the
drug's history and current pattern of abuse; (2) the scope, duration,
and significance of abuse; and (3) the risk to the public health,
giving specific consideration to "actual abuse, diversion from
legitimate channels, and clandestine importation, manufacture, or
distribution." 21 U.S.C. 811(h)(3) (incorporating 21 U.S.C. 811(c)(4),
(5) and (6)). Section 201(h), however, does not dispense with the
requirement that a drug listed on schedule I have the characteristics
of a schedule I controlled substance. Hence, to list a substance
temporarily on schedule I, the Attorney General must not only make the
Section 201(h) "imminent hazard" determination that justifies
expedited rulemaking; in accordance with Section 202(b)(1), the
substance must also exhibit a high potential for abuse, it must have
no currently accepted medical use, and there must be a lack of
accepted safety for its use under medical supervision. 21 U.S.C.
812(b)(1). /4/
Before issuing an order listing a substance of a temporary basis
under Section 201(h), the Attorney General must publish a notice of
proposed listing in the Federal Register and transmit a notice of the
proposed order to the Secretary of HHS. CSA Section 201(h)(1)(A) and
(B), (h)(4), 21 U.S.C. 811(h)(1)(A) and (B), (h)(4). The Attorney
General must then wait 30 days after the Federal Register notice and
the HHS transmittal before issuing the order. In deciding whether to
list a substance following this 30-day period, the Attorney General
must take into account any comments submitted by the Secretary of HHS,
but the prior approval of the Secretary is not required, as would be
the case for a permanent listing. CSA Section 201(h)(4), 21 U.S.C.
811(h)(4); compare CSA Section 201(b), 21 U.S.C. 811(b).
A Section 201(h) temporary listing expires at the end of one year
except that, if the Attorney General has instituted rulemaking
proceedings for the permanent listing of the substance under Section
201(a), the Attorney General may extend the temporary listing for up
to six months. CSA Section 201(h)(2), 21 U.S.C. 811(h)(2). In any
event, the temporary listing expires upon the completion of permanent
rulemaking respecting the listing of the substance. CSA Section
201(h)(5), 21 U.S.C. 811(h) (5). Subsection 201(h)(6) provides that
the Attorney General's order temporarily listing a drug as a schedule
I substance "is not subject to judicial review." 21 U.S.C. 811(h)(6).
This provision postpones the special statutory review mechanism set
forth in Section 507 -- which, as we have explained, provides
"aggrieved parties" with judicial review in the appropriate court of
appeals -- until the conclusion of permanent rulemaking procedures.
See CSA Section 507, 21 U.S.C. 877. /5/
3. Congress has provided, through Section 4(c) of the Act of Sept.
6, 1966, ch. 31, 80 Stat. 612, that the Attorney General "may from
time to time make such provisions as he considers appropriate
authorizing the performance by any other officer, employee, or agency
of the Department of Justice of any function of the Attorney General."
28 U.S.C. 510. In addition, Section 501(a) of the Controlled
Substances Act provides that the "Attorney General may delegate any of
his functions under (the control and enforcement subchapter of the
Act) to any officer or employee of the Department of Justice." 21
U.S.C. 871(a).
In 1973, the Attorney General delegated the performance of his
duties under the Controlled Substances Act, including the scheduling
of drugs, to the Administrator of the DEA. 38 Fed. Reg. 18,380. See
28 C.F.R. 0.100 (b) (1986). That delegation was amended in 1987 to
clarify that it included the authority to schedule substances on a
temporary basis under the expedited procedures of Section 201(h). 52
Fed. Reg. 24,447. See 28 C.F.R. 0.100(b). /6/
B. The Temporary Listing Of Euphoria As A Schedule I Controlled
Substance
1. On August, 13, 1987, the Administrator of the DEA proposed the
temporary listing of 4-methylaminorex (formally known as (plus or
minus) cis-4, 5-dihydro-2-amino-4-methyl-5-phenyl-2-oxazolamine) as a
schedule I controlled substance. 52 Fed. Reg. 30,174. /7/ The
Administrator observed that the drug "is a new substance that is
clandestinely produced, that is distributed in illicit traffic, and
that produces stimulant effects," and therefore "is certainly the type
of drug which Congress intended to be considered for emergency
scheduling." Ibid. Citing various studies, the Administrator also
noted that 4-methylaminorex's pharmacological profile resembles that
of amphetamine; that in high doses it produces "seizure activity in
the brain and associated convulsions, depression, respiratory failure,
and death"; and that the DEA was not aware of any commercial
manufacturers or suppliers of the drug or of any approved therapeutic
use. Id. at 30,175.
The Administrator made the necessary findings for listing under
Sections 201(h) of the Controlled Substances Act. He considered the
history, pattern, and significance of abuse, and the risk the drug
posed to public safety. 52 Fed. Reg. 30,174. See CSA Section
201(h)(3), 21 U.S.C. 811(h)(3). He also identified the
characteristics necessary to qualify the substance for schedule I
listing, referring to "the potent stimulant and toxic actions of the
substance, and the lack of accepted medical use or established safety
for the use of 4-methylaminorex." 52 Fed. Reg. at 30,174. See CSA
Section 202(b)(1), 21 U.S.C. 812(b)(1). Based on a consideration of
the factors required by Section 201(h)(3), as well as the finding that
the drug qualified as a schedule I controlled substance under Section
202(b)(1), the Administrator concluded that listing 4-methylaminorex
in schedule I, at least on a temporary basis, was "necessary to avoid
an imminent hazard to the public safety." 52 Fed. Reg. 30,175.
Pursuant to Section 201(h)(4), the Administrator notified the
Assistance Secretary of Health and Human Services of the proposed
scheduling. Ibid.
2. On October 15, 1987, the Administrator published an order
temporarily listing 4-methylaminorex as a schedule I controlled
substance, effective on that date. 52 Fed. Reg. 38,225. In response
to the notice of intent to schedule the drug, the Food and Drug
Administration (FDA) of HHS had advised the DEA that it had no
objections to the schedule I listing of the substance. Ibid. No
comments were received from any other interested parties. Ibid.
Based on the information discussed in the August 13 notice of proposed
listing, the Administrator stated his finding that the temporary
listing of the drug as a schedule I controlled substance was necessary
to avoid an imminent hazard to the public safety. Id. at
38,225-38,226. The notice specifically warned that any unauthorized
activity respecting the drug was henceforth unlawful and subject to
criminal penalties. Ibid.
3. On October 13, 1988, the Administrator extended the duration of
the temporary listing for an additional six months, through April 15,
1989, or until completion of rulemaking proceedings to schedule the
drug on a permanent basis, whichever occurred first. 53 Fed. Reg.
40,061. The next day, he issued a notice of intent to schedule the
drug permanently. 53 Fed. Reg. 40,391. /8/ On April 13, 1989,
4-methylaminorex was permanently listed as a schedule I controlled
substance after the completion of rulemaking under Section 201(a). 54
Fed. Reg. 14,799.
C. The Facts And Proceedings In This Case
1. On January 5, 1989, police officers in Wanaque, New Jersey,
arrested petitioners after they purchased a television set with a
counterfeit cashier's check. A search incident to the arrest found
petitioners to be in possession of marijuana and drug paraphernalia.
Based on further investigation, a warrant was obtained to search
petitioner's home for counterfeiting materials and drugs. When DEA
agents executed the warrant on January 6, 1989, they discovered a
fully operational drug laboratory in petitioners' bedroom. Among the
items seized were papers containing the formula for manufacturing
4-methylaminorex. Also seized were mixtures that, upon testing, were
found to contain the drug. /9/ J.A. 19-21 49-50.
2. On January 11, 1989, a grand jury in the United States District
Court for the District of New Jersey returned a two-count indictment
charging petitioners with unlawful manufacture of a schedule I
controlled substance and conspiracy to manufacture that substance, in
violation of the Controlled Substances Act. See CSA Sections 401(a),
406, 21 U.S.C. 841(a), 846. At the time of the alleged offenses, the
Administrator of the DEA had temporarily listed 4-methylaminorex as a
schedule I controlled substance pursuant to Section 201(h), but he had
not completed the rulemaking for permanent listing of the substance.
J.A. 2, 28.
Petitioners challenged the constitutionality of Section 201(h) in a
pretrial motion to dismiss the indictment. They contended that
Congress had impermissibly delegated to the Attorney General
legislative power to criminalize activity concerning 4-methylaminorex
by authorizing him to list the drug as a schedule I controlled
substance on a temporary basis. Petitioners also contended that the
Attorney General could not in any event delegate his temporary listing
authority to the Administrator. The district court rejected both
challenges in an opinion dated March 17, 1989. J.A. 11-19. After a
jury trial, petitioners were convicted as charged in the indictment.
Daniel Touby was sentenced to 42 months' imprisonment and Lyrissa
Touby was sentenced to 27 months' imprisonment, each term of
imprisonment to be followed by three years' supervised release. J.A.
28.
3. The court of appeals affirmed petitioners' convictions,
rejecting their challenges to the temporary scheduling procedure.
J.A. 27-54. The court first held that Congress had not impermissibly
delegated its legislative power to the Attorney General by authorizing
him to list drugs as controlled substances on a temporary basis. /10/
J.A. 33-43. It noted that this Court has sustained broad assignments
of authority to the Executive Branch, as long as the relevant
congressional enactment lays down an "intelligible principle"
directing the responsible official's actions. Id. at 34-35, quoting
Mistretta v. United States, 488 U.S. 361, 372 (1989), and J.W.
Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).
The court rejected petitioners' contention that a more stringent
nondelegation standard should be applied in this case because Section
201(h) permits the Attorney General to "create" crimes. J.A. 35-38.
It explained that this Court has not in fact applied a more stringent
test in considering the validity of statutes authorizing
administrative regulation of conduct giving rise to criminal
liability, J.A. 36-37, and that Section 201(h) does not authorize the
Attorney General to define primary criminal conduct, because Congress
itself has proscribed the manufacture and possession of controlled
substances, while the Attorney General "merely designat(es) the drugs
or substances which fall within Congress' general description." J.A.
37-38.
Applying this Court's "intelligible principle" test, the court of
appeals concluded that Section 201(h) provides the Attorney General
with sufficient guidance for making the "imminent hazard" finding
required for temporary listing of substances. J.A. 39-40. The court
observed that the statutory standards provide at least as much
guidance as the "public interest, convenience, interest, or necessity"
standard that was found to be sufficient to guide the Federal
Communications Commission in National Broadcasting Co. v. United
States, 319 U.S. 190, 225-227 (1943), or the "excessive profits"
standard for renegotiation of wartime contracts that was sustained in
Lichter v. United States, 334 U.S. 742, 783-787 (1948). J.A. 39-40.
Moreover, the court of appeals found that the constitutionality of
Section 201(h) was reinforced by the limited scope of the temporary
scheduling, which "can be viewed as preliminary to and in aid of the
permanent scheduling authority as set forth in section (201(a))," J.A.
40, and by the practical necessities of the situation confronting
Congress. The court observed that Congress had found the permanent
listing procedures inadequate to address the situation of "designer
drugs" that are similar to listed substances but contain slight
variations, and it noted that the purpose of the temporary listing
authority is to "avoid an imminent hazard to the public safety," 21
U.S.C. 811(h)(1), by imposing an "'emergency control'" during the
interim between identification of a drug that presents a major abuse
problem and the permanent scheduling of the substance -- a period
during which "'enforcement actions against traffickers (were) severely
limited and a serious health problem may arise.'" J.A. 39, 40 (quoting
S. Rep. No. 225, supra, at 264, 265).
Finally, the court rejected petitioners' contention that Section
201(h)(6)'s limitation on judicial review of an order listing a drug
on a temporary basis renders Section 201(h) an unconstitutional
delegation of legislative power. J.A. 41-43. The court pointed out
that Congress has foreclosed judicial review in a variety of other
administrative contexts. J.A. 42-43. It also stated that Section
201(h)(6) does not necessarily bar judicial review of the temporary
listing in a criminal prosecution, if the defendant claims that the
listing of the particular drug violated the standards in Section
201(h). J.A. 33 n.2, 42-43. But in this case, the court noted,
petitioners "do not contend that Euphoria cannot be scheduled as a
Schedule I narcotic or that the temporary scheduling of the substance
did not meet the standards set forth in 21 U.S.C. Section 811(h)."
J.A. 33.
The court of appeals next held that Section 4(c) of the Act of
September 6, 1966, 28 U.S.C. 510, empowered the Attorney General to
delegate his temporary listing authority to the Administrator of the
DEA. /11/ J.A. 43-46. The court cited the general rule that in the
absence of a contrary expression by Congress, powers conferred on an
Executive Branch officer may be delegated to a subordinate official,
J.A. 45, and it found no support for the proposition that Congress
intended sub silentio to create an exception to the Attorney General's
broad delegation authority under Section 4(c) in the context of the
listing of controlled substances on a temporary basis pursuant to
Section 201(h). /12/ The court further found that the Attorney
General did, in fact, delegate his Section 201(h) authority to the
Administrator. J.A. 46-48.
Judge Hutchinson dissented. J.A. 54-66. He agreed with the
majority that the record did not suggest that the Attorney General
acted arbitrarily or otherwise improperly in temporarily listing
Euphoria as a controlled substance under Section 201(h) or that
Euphoria is not a danger to the public safety. J.A. 55. Judge
Hutchinson also accepted the majority's analysis of the statutory
background and the nature of the problem to which Section 201(h) is
addressed, J.A. 55, and he concluded that Section 201(h)'s purpose of
avoiding "'an imminent hazard to the public safety' is in and of
itself an intelligible principle under the teachings of the Supreme
Court." J.A. 58, citing National Broadcasting Co. v. United States,
319 U.S. at 225-226, and Lichter v. United States, 334 U.S. at
783-787. But Judge Hutchinson nevertheless believed that Section
201(h) unconstitutionally delegates Congress's legislative power
because, in his view, it authorizes the Attorney General to define
primary criminal conduct and therefore should be subject to a more
stringent non-delegation test. J.A. 58-61. /13/
SUMMARY OF ARGUMENT
1. The Constitution divides and diffuses governmental power among
the "three coequal Branches." Mistretta v. United States, 488 U.S.
361, 380 (1989). This Court's requirement that Congress provide an
intelligible principle to guide an executive officer's administration
of a statute maintains that separation of powers by assuring that no
"legislative power" -- as the Constitution uses that term -- is
delegated to the Executive Branch. Once it is determined, through
application of that standard, that Congress has conferred only
executive functions, the delegation inquiry is at an end. Separation
of powers principles do not prevent Congress from selecting the
Attorney General, rather than another Executive Branch official, to
perform the executive function. Indeed, Congress had sound policy
reasons for vesting the Attorney General with the Section 201(h)
temporary listing authority, and the potential for abuse that
petitioners posit simply does not exist.
Petitioners are also mistaken in arguing that Section 201(h) is an
unconstitutional delegation because Congress has provided inadequate
opportunity for judicial oversight of the Attorney General's temporary
listing decisions. A temporary listing of a substance is simply the
first step in the administrative process for determining whether the
substance should be permanently listed. As petitioners recognize,
Section 507 of the Controlled Substances Act specifically authorizes
judicial review if the substance is permanently listed. 21 U.S.C.
877. Petitioners object, however, that Section 201(h)(6) precludes
Section 507 review during the interim period of up to 18 months while
the permanent rule is under consideration and the temporary listing is
in effect. There is no merit to that objection. Individuals who
insist on manufacturing and selling hazardous substances during that
interim period may challenge the Attorney General's listing decision
in a criminal enforcement proceeding. The government is not required
to stay its hand until the courts have an opportunity to determine
whether government is justified in bringing an enforcement action.
See Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 598-599
(1950).
2. Petitioners also argue that the Attorney General lacks statutory
authority to delegate his Section 201(h) responsibilities to the
Administrator of the DEA. Congress, however, has authorized that
subdelegation under two separate statutes. First, Congress has given
the Attorney General broad authority to delegate the performance of
"any" of his functions to another officer, employee, or agency of the
Department of Justice. 28 U.S.C. 510. Second, Congress specifically
provided in Section 501(a) of the Controlled Substances Act that the
Attorney General "may delegate any of his functions" under the control
and enforcement provisions of that Act to any officer or employee of
the Department. 21 U.S.C. 871(a). There is no indication in the
Controlled Substances Act that Congress intended to except the
Attorney General's responsibilities under Section 201 (h) from those
delegation provisions. The Attorney General accordingly had ample
statutory authority to delegate his Section 201(h) responsibilities to
the Administrator of the DEA.
ARGUMENT
I. SECTION 201(h) DOES NOT VIOLATE THE CONSTITUTION'S REQUIREMENT
THAT "ALL LEGISLATIVE POWERS" SHALL BE VESTED IN CONGRESS
The Constitution provides that "(a)ll legislative Powers herein
granted shall be vested in a Congress of the United States." U.S.
Const. Art. I, Section 1. Petitioners contend that Congress has
violated that requirement by creating schedules of controlled
substances, providing the initial contents of those schedules, and
then authorizing the Attorney General to add -- temporarily, pending
formal rulemaking -- other substances that he had identified as posing
"an imminent hazard to the public safety." Section 201(h), 21 U.S.C.
811(h). Although petitioners contend that Congress's action is
"unprecedented" (Br. 15), "strikes at the heart of the system of
checks and balances that guarantee the rule of law" (Br. 15) and
undermines individual liberty "at its core" (Br. 18), they also
recognize that this Court's precedents narrowly restrict the scope of
their challenge.
Petitioners accept that "the separation-of-powers principle, and
the nondelegation doctrine in particular, do not prevent Congress from
obtaining the assistance of its coordinate Branches." Mistretta v.
United States, 488 U.S. 361, 372 (1989). They also accept (Br. 12-13,
21) the principle "now enshrined in our jurisprudence" that:
"In determining what (Congress) may do in seeking assistance
from another branch, the extent and character of that assistance
must be fixed according to common sense and the inherent
necessities of the government coordination."
Mistretta, 488 U.S. at 372, quoting J.W. Hampton, Jr., & Co. v. United
States, 276 U.S. 394, 406 (1928).
Petitioners acknowledge that "Congress has often granted executive
departments and agencies the authority to promulgate regulations that
govern private conduct, and some of the resulting regulations are
enforceable through criminal prosecutions." Br. 19. See, e.g., Yakus
v. United States, 321 U.S. 414 (1944); United States v. Grimaud, 220
U.S. 506 (1911). And they acknowledge, more indirectly (Br. 13 & n.7,
22 n.14, 24), the firmly established rule that
(s)o long as Congress "shall lay down by legislative act an
intelligible principle to which the person or body authorized to
(exercise the delegated authority) is directed to conform, such
legislative action is not a forbidden delegation of legislative
power."
Mistretta, 488 U.S. at 372, quoting J.W. Hampton, Jr., & Co., 276 U.S.
at 409. /14/
Petitioners do not claim that Congress has failed to set forth an
"intelligible principle" to guide the Attorney General's listing of
substances on a temporary or permanent basis. Indeed, they expressly
disclaim any challenge to "the specificity of the substantive
standards that Congress established to govern the exercise of
delegated powers." Br. 13, 21. And, as the court of appeals stated,
petitioners "do not contend that Euphoria cannot be scheduled as a
Schedule I narcotic or that the temporary scheduling of the substance
did not meet the standards set forth in 21 U.S.C. Section 811(h)."
J.A. 33.
Ultimately, petitioners seek an exception to this Court's settled
delegation principles based on two points: the Attorney General
(rather than some other executive official) exercises the authority
conferred under the statute (Br. 14-23); and the statute's temporary
listing provisions do not provide for pre-enforcement review (Br.
24-35). As we explain below, Congress's conferral of authority in
this case is plainly constitutional under this Court's settled
standards and is not, as petitioners suggest, "unprecedented" (Br. 15,
19, 30). The factors that petitioners claim distinguish this case --
the identity of the particular executive officer who exercises the
delegated authority, and the timing of judicial review -- do not call
for a different analysis or dictate a different result.
A. Section 201(h) Satisfies Established Delegation Standards
Petitioners face a difficult task in demonstrating that a duly
enacted congressional statute is facially unconstitutional. See,
e.g., Mistretta, 488 U.S. at 384; United States v. Salerno, 481 U.S.
739, 745 (1987); Rostker v. Goldberg, 453 U.S. 57, 64 (1981). That
task is especially difficult in this case because, as the lower courts
held and petitioners concede, Congress's delegation of authority to
the Attorney General under Section 201(h) amply satisfies the
"intelligible principle" test that this Court has consistently
employed to determine the constitutionality of challenged delegations.
See Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 218-219, 224
(1989); Mistretta, 488 U.S. at 372-374.
1. Sections 201(h) and 202(b) set forth "intelligible" -- and
indeed quite precise -- standards to channel the Attorney General's
discretion in identifying substances for temporary listing as schedule
I controlled substances. First, the substance must present "an
imminent hazard to the public safety," CSA Section 201(h)(1), 21
U.S.C. 811(h)(1), as determined after consideration of the substance's
history and current pattern of abuse, the scope, duration and
significance of abuse, the risk to the public health, the diversion
from legitimate channels, and clandestine importation, manufacture, or
distribution, CSA Section 201(c)(4)-(6), (h)(3), 21 U.S.C.
811(c)(4)-(6), 811(h)(3). Second, to qualify for listing on schedule
I, a substance must have "a high potential for abuse," it must have
"no currently accepted medical use in treatment in the United States,"
and there must be "a lack of accepted safety for use of the drug or
other substance under medical supervision." CSA Section 202(b)(1), 21
U.S.C. 812 (b)(1). /15/ There is no question in this case that these
standards meet the "intelligible principle" test for upholding
Congress's delegation of authority.
2. While petitioners state that they do "not challenge the
specificity of the substantive standards that Congress established to
govern the exercise of (the Section 201(h)) delegated powers," Pet.
Br. 13, 21, they nevertheless claim that the Attorney General may act
with "unfettered discretion" in selecting "any drug" for emergency
schedule I listing under Section 201(h), Pet. Br. 14, 24. Petitioners
overlook the significance of the requirements that a substance listed
on an emergency basis must both pose an "imminent hazard" and meet the
three criteria for schedule I listing set in out Section 202(b)(1).
See Pet. Br. 14 n.9. For example, one of the key distinctions drawn
by Section 202(b) between schedule I substances and substances
qualifying for inclusion on the other schedules is the lack of a
"currently accepted medical use in treatment in the United States." 21
U.S.C. 812(b)(1)(B). Each of the other schedules includes substances
that have a currently accepted medical use. See 21 U.S.C.
812(b)(2)(B), (3)(B), (4)(B), and (5)(B). Thus, petitioner's
suggestion (Br. 24) that the Attorney General "could add a substance
as innocuous as aspirin to Schedule I" is not only farfetched, but is
precluded by the statute. /16/
3. Petitioners also suggest (Br. 15-16, 30-31) that when Congress
delegates authority to the Executive Branch to identify specific
conduct that may result in criminal prosecution there is a need for
"heightened constitutional concerns." This Court, however, has never
rejected application of the "intelligible principle" test in the
criminal context. The relevant inquiry remains whether Congress has
set forth standards sufficiently specific to guide the executive
official's exercise of discretion. Cf. Skinner, 490 U.S. at 222-223
(rejecting the "application of a different and stricter nondelegation
doctrine in cases where Congress delegates discretionary authority to
the Executive under its taxing power"). /17/
For example, in Yakus v. United States, 321 U.S. 414 (1944), this
Court upheld a delegation of authority to fix maximum commodity prices
and rents even though violation of the regulations was a criminal
offense. There was no suggestion in that case that a more stringent
standard of delegation applied. Similarly, in J.W. Hampton, Jr., &
Co., 276 U.S. at 406, the Court observed that Congress frequently
secures the "the exact effect" of legislation by vesting discretion in
executive officers to make regulations "directing the details of its
execution, even to the extent of providing for penalizing a breach of
such regulations." 276 U.S. at 406. Indeed the instances are legion
where Congress has authorized Executive Branch agencies to prescribe
regulations or to make administrative determinations that may result
in the imposition of criminal punishment. /18/ This Court has
repeatedly upheld such authorizations without regard to their penal
consequences. See, e.g., Avent v. United States, 266 U.S. 127 (1924);
McKinley v. United States, 249 U.S. 397 (1919); United States v.
Grimaud, 220 U.S. 506 (1911); Monongahela Bridge Co. v. United
States, 216 U.S. 177 (1910); Union Bridge Co. v. United States, 204
U.S. 364 (1907); In re Kollock, 165 U.S. 526 (1897). /19/
4. Congress's prescription of "intelligible principles" is
sufficient, by itself, to assure that Section 201(h) does not delegate
"legislative power" -- in the sense the Constitution uses that term --
to the Executive Branch. See Skinner, 490 U.S. at 218-219. Indeed,
prior to the development of that test, this Court repeatedly stated
that statutes conditioning the application of the law on executive
determinations do not delegate lawmaking authority at all; rather,
they confer "an authority or discretion as to its execution, to be
exercised under and in pursuance of the law." J.W. Hampton, Jr., &
Co., 276 U.S. at 407, and Field v. Clark, 143 U.S. 649, 693-694
(1892), quoting Cincinnati, W. & Z. R.R. v. Commissioners of Clinton
County, 1 Ohio St. 77, 88-89 (1852). /20/
The Court's "intelligible principle" standard has further refined
that reasoning by recognizing that if Congress has failed to
articulate intelligible principles to guide the executive officer's
exerise of discretion under the statute, there may be a de facto
delegation of legislative power. See Mistretta, 488 U.S. at 418-419
(Scalia, J., dissenting). Once it is determined, however, that the
executive officer is executing Congress's will pursuant to
ascertainable legislative guidelines, that is the end of the
delegation inquiry. In cases such as this one, where Congress has set
forth specific standards to direct the Attorney General's exercise of
discretion, there is no delegation of legislative power at all. See
Mistretta, 488 U.S. at 379.
B. The Constitution Does Not Prohibit Congress From Authorizing The
Attorney General To Exercise The Authority Conferred By Section 201(h)
Petitioners argue that satisfaction of this Court's "intelligible
principle" standard is not enough in this case. They contend (Br.
14-23) that Section 201(h) violates delegation principles by
committing the temporary scheduling decision to the Attorney General
rather than to some other executive official, such as the Secretary of
HHS. Petitioners assert (Br. 14) that Congress's choice results in an
"unconstitutional aggregation of power" because it gives the Attorney
General "unilateral authority to create crimes and prosecute
violators." This novel argument misconceives both the nature of the
Constitution's separation of powers principle and the specific
responsibilities of the Attorney General.
1. This Court "consistently has given voice to, and has reaffirmed,
the central judgment of the Framers of the Constitution that, within
our political scheme, the separation of governmental powers into three
coordinate Branches is essential to the preservation of liberty."
Mistretta, 488 U.S. at 380. But the concept of separation of powers
always focuses on the distribution of powers among the "three coequal
Branches." Ibid. What is forbidden are "provisions of law that either
accrete to a single Branch powers more appropriately diffused among
separate Branches or that undermine the authority and independence of
one or another coordinate Branch." Id. at 382.
This Court has never suggested that separation of powers principles
govern the aggregation of powers within subdivisions of the Executive
Branch. Indeed, the Constitution provides no premise for such an
approach because it vests all executive power in the President, U.S.
Const. Art. II, Section 1, and requires him to see that the laws are
"faithfully executed," U.S. Const. Art. II, Section 3. From a
constitutional perspective, the Executive Branch's authority to
administer statutes through the promulgation of regulations is
necessarily and always aggregated with the Executive Branch's
authority to enforce the law through penal and other legislatively
prescribed means. The promulgation of regulations and the prosecution
of offenses are simply different aspects of the Executive's function.
2. Petitioners recognize that there is nothing novel in Congress
authorizing Executive Branch officials to proscribe dangerous
substances upon determination that the substances pose an "imminent
hazard to the public safety" and to enforce those proscriptions
through criminal penalties. CSA Section 201(h), 21 U.S.C. 811(h).
/21/ They concede that "the need for flexibility and expertise may
well justify delegation of the temporary scheduling power to some
executive officer." Br. 22. Petitioners argue (Br. 15, 22-23),
however, that Congress should have vested the Secretary of HHS, rather
the Attorney General, with the authority to make the temporary listing
decision to avoid aggregating "criminal lawmaking and prosecutorial
power." That argument, however, does really not rest on the
constitutional doctrine of separation of powers, but simply challenges
the wisdom of a legislative policy judgment. /22/
Petitioners err at the outset by simply assuming that Congress has
delegated "criminal lawmaking" power to the Attorney General -- even
though, as they concede, Congress has provided an "intelligible
principle" to control the executive's exercise of discretion. As we
have explained (pp. 19-25, supra), Congress's articulation of clear
standards to guide executive discretion ensures that the Attorney
General performs only executive functions. That should end the
delegation inquiry. The extent to which a particular function is
executive in nature does note depend on which Executive Branch
official performs the function. Indeed, petitioners are unable to
cite a single instance in which this Court has invalidated any Act of
Congress on the ground that it gave one Executive Branch official,
rather than another, authority over a particular executive function.
Congress has broad authority, under the Necessary and Proper
Clause, U.S. Const. Art. I, Section 8, Cl. 18, to create or select the
appropriate Executive Brance officer to perform a particular executive
function. Congress vested the Attorney General with authority to make
temporary scheduling decisions because, in Congress's judgment, the
Attorney General is best situated to determine whether a substance
poses an "imminent hazard to the public safety." Specifically,
Congress enacted the temporary listing provisions to deal with the
emergent abuse of unlisted drugs. CSA Section 201(h)(3), 21 U.S.C.
811(h)(3) (requiring that the imminent hazard determination be based
on considerations related to abuse and risk to the public health). As
a general matter, the Controlled Substances Act vests the Attorney
General with primary responsibility for determining abuse
characteristics. See CSA Section 201(b), 21 U.S.C. 811(b)
(restricting the Secretary of HHS to consideration of the "scientific
or medical" aspects of abuse characteristics). Thus, it is quite
reasonable that Congress would vest the Attorney General, rather than
the Secretary of HHS, with the imminent hazard determination.
Congress's decision that the Attorney General, rather than the
Secretary of HHS, should make the imminent hazard determination is
also consistent with the "real world" aspects of the problem. As in
the case of Euphoria, the government typically learns that a drug
poses an imminent hazard through criminal investigations by the DEA or
state law enforcement authorities that reveal emerging abuse patterns.
See 52 Fed. Reg. 30,174 (1987); App., infra, 7a, 9a, 12a. Thus, the
Attorney General, who supervises the DEA and coordinates law
enforcement activities with the States, is best situated to respond
promptly to the imminent public safety menace posed by drugs such as
Euphoria, which are produced and sold through clandestine operations.
3. Petitioners argue, nevertheless, that the Attorney General's
regulatory and prosecutive functions must be separated to prevent
"'tyrannical' abuse." Br. 15-19. They suggest that the Attorney
General might use his Section 201(h) authority to provide a means for
prosecuting "targeted" individuals. Br. 18-19. That argument,
however, does not rest on the constitutional concept of separation of
powers, but rather on the notion that particular officials with the
Executive Branch cannot be trusted to execute faithfully Congress's
directives. See Pet. Br. 18.
As petitioners recognize (Br. 17 n.12), the Constitution, through
the Due Process Clause and the specific guarantees in the Fifth and
Sixth Amendments, provides significant safeguards against abuses of
the power of prosecution. In addition, Congress can provide further
safeguards through statutes and rules of procedure. There is no need
for the Court to create additional checks that have no source in the
Constitution's text, based on speculative assumptions that public
officials will misuse lawful authority. To the contrary, as this
Court has explained, Executive Branch officials are entitled to the
presumption that "they will act properly and according to law." FCC v.
Schreiber, 381 U.S. 279, 296 (1965). See, e.g., Fahey v. Mallonee,
332 U.S. 245, 256 (1947).
Moreover, there is little realistic possibility of abuse of the
sort that petitioners posit in this case. Petitioners' hypothetical
scenario of abuse rests on the assumption that a single individual
exercises the rulemaking and prosecutive functions. In reality, those
functions are carried out by separate officials: the Administrator of
the DEA exercises the authority to schedule substances under Section
201(h) (see p. 39, infra), while the individual United States
Attorneys both possess and typically exercise the statutory authority
to initiate prosecutions. See 28 U.S.C. 547. Thus, there is in
practice a separation of the rulemaking and prosecutive functions
within the Department of Justice respecting controlled substances.
The potential abuse that petitioners posit is no more likely to occur
in this case than in any case where the violation of an administrative
regulation may provide the basis for a criminal prosecution. /23/
In any event, petitioners fail to identify any such abuse in this
case. They concede that Euphoria meets the legislative standards for
designation as a schedule I controlled substance, and they do not
contend that the listing of Euphoria was designed to "target( )" them
for prosecution. Indeed, the fact that the government lists a
controlled substance through a prospective rule of general application
all but eliminates any possibility of petitioners' hypothesized abuse.
Moreover, as we explain in greater detail below, the government's
actions are subject to judicial review at the conclusion of the
permanent listing and in the course of an enforcement proceeding.
That review is a sufficient safeguard "against statutory or
constitutional excesses." American Power & Light Co. v. SEC, 329 U.S.
90, 106 (1946). /24/
4. Petitioners contend that Congress's action in this case is
"entirely unprecedented in our history" and that "(n)o case supports"
upholding the authority of the Attorney General both to regulate
legislatively identified activity and to prosecute violation of those
regulations as a crime. Br. 19, 20. Those assertions are not
accurate. Congress has granted and the courts have uniformly upheld
the Attorney General's authority to list drugs permanently as
controlled substances. /25/ In addition, Congress long has authorized
the Attorney General to identify prohibited prison contraband and
prosecute persons who introduce it into prison. 18 U.S.C. 1791, 4001.
Prior to 1984, Section 1791 provided that:
Whoever, contrary to any rule or regulation promulgated by the
Attorney General, introduces or attempts to introduce into or
upon the grounds of any Federal penal or correctional
institution or takes or attempts to take or send therefrom any
thing whatsoever, shall be imprisoned not more than ten years.
18 U.S.C. 1791 (1982). The courts uniformly upheld the
constitutionality of that statute, which in petitioners' terminology
combined "crime-defining and crime-prosecuting authority" (Br. 19).
See S. Rep. No. 225, supra, at 380 n.1. /26/ Congress amended that
statute in 1984 to ensure that the statute would reach possession as
well as introduction of contraband. See id. at 380. Congress's
delegation to the Attorney General under the past and present versions
of 18 U.S.C. 1791 is at least as broad as that under Section 201(h).
/27/
C. Congress Has Provided Constitutionally Adequate Judicial
Oversight Of Section 201(h) Scheduling Decisions
Petitioners also contend that Section 201(h) is an unlawful
delegation because Congress has failed to set out adequate provisions
for judicial review of temporary scheduling decisions. Petitioners'
argument, however, rests in large part on a misunderstanding of
Section 201(h).
1. As petitioners recognize, the Controlled Substances Act provides
for judicial review of permanent scheduling decisions following the
issuance of a final rule. CSA Section 507, 21 U.S.C. 877. /28/ Thus,
the Attorney General's decision to list a substance on schedule I is
subject to judicial review under Section 507 if the substance is
permanently listed -- a process that must be completed within 18
months of the temporary listing. See CSA Section 201(h)(2).
Petitioners object that Congress, through Section 201(h)(6), has
precluded Section 507 judicial review during the period of up to 18
months that the temporary listing is in effect. See 21 U.S.C.
811(h)(6). Section 201(h)(6), however, is simply designed to postpone
suits challenging the listing decision until the administrative
process has run its course. A temporary listing of a substance under
Section 201(h) is the first step in the process of determining whether
the substance should be permanently listed on a controlled substances
schedule. The Attorney General's basis for listing the substance
temporarily is open to public comment and reconsideration in the
course of the Section 201(a) rulemaking for permanent listing. During
that rulemaking, the Attorney General may decide that the substance
should be listed on a different schedule or not listed at all. Hence,
judicial review of the temporary listing decision prior to completion
of the rulemaking would be premature and might prove entirely
unnecessary. /29/
2. Petitioners nevertheless contend that Section 201(h) is an
unconstitutional delegation of authority because Section 201(h)(6)
denies them an opportunity, pending the permanent listing decision, to
have a court "'ascertain whether the will of Congress has been
obeyed.'" Br. 24, quoting Skinner, 490 U.S. at 218. It is far from
clear that this challenge, even if sustained, would warrant reversal
of their convictions. /30/ In any event, however, Section 201(h)(6)
does not foreclose judicial oversight of the Attorney General's action
during that period. As the court of appeals properly recognized, an
individual who is prosecuted for a drug violation based on a
temporarily listed substance may challenge the legality of the
temporary listing as a defense to the presecution. J.A. 33 n.2,
42-43.
Under the principle of sovereign immunity, an individual has no
general right to bring a lawsuit against the government challenging
sovereign action. See, e.g., Larson v. Domestic & Foreign Commerce
Corp., 337 U.S. 682 (1949). /31/ Nevertheless, Congress frequently
authorizes individuals to bring suits against the government (or its
officers) -- as in Section 507 of the Controlled Substances Act -- to
review such action at an appropriate time. See also, e.g.,
Administrative Procedure Act, 5 U.S.C. 701 et seq. (permitting review
of final agency action). The presence or absence of a provision
creating a right to seek judicial review of agency action, however,
generally does not prevent an individual from challenging agency
regulations or administrative determinations as a defense to a
criminal action brought to enforce them. /32/
While Section 201(h)(6) postpones an individual's right to seek
judicial review of a listing decision under Section 507, it does not
affect the individual's right to challenge the listing as a defense to
a criminal enforcement action brought during the period that the drug
was temporarily listed as a schedule I substance. As petitioners
acknowledge (Br. 27), there is a strong presumption favoring judicial
oversight of agency action. /33/ When Congress wishes to prevent
judicial inquiry into agency action in an enforcement proceeding, it
typically makes that wish explicit. /34/ There is no clear indication
in the Controlled Substances Act or its legislative history that
Congress intended to withdraw that right here. Rather, it is clear
from the structure of the statute that Section 201(h)(6)'s limitation
on "judicial review," 21 U.S.C. 811(h)(6), pertains only to the remedy
that Congress provided in Section 507, allowing aggrieved parties to
seek "judicial review." 21 U.S.C. 877. No court has held, as
petitioners would have it, that Section 201(h)(6) precludes an
individual from challenging a temporary scheduling decision as a
defense to a prosecution. Petitioners' argument accordingly is
without merit. /35/
3. Petitioners contend (Br. 28-30) that even if judicial review of
a Section 201(h) scheduling order is available in an enforcement
proceeding, the statutory scheme is unconstitutional because it does
not provide for a pre-enforcement challenge to the validity of the
administrative determination. It is well settled, however, that the
Constitution does not require "that there be judicial inquiry before
discretion can be exercised." Ewing v. Mytinger & Casselberry, Inc.,
339 U.S. 594, 598-599 (1950). /36/ Congress can and frequently does
deny pre-enforcement review of regulatory actions. /37/
Petitioners cite no case holding that pre-enforcement review of
administrative determinations is constitutionally required. As
petitioners recognize (Br. 33), this Court has upheld Congress's power
to restrict pre-enforcement review, even where important liberty
interests are at stake. For example, in Clark v. Gabriel, 393 U.S.
256 (1968), this Court held that pre-enforcement review of a military
induction determination was not constitutionally required even though
the induction determination would directly affect an individual's
liberty and disobedience would result in criminal prosecution. The
Court observed that pre-induction review would result in "litigious
interruptions" of induction procedures and concluded:
We find no constitutional objection to Congress' thus requiring
that assertion of a conscientious objector's claims such as
those advanced by appellee be deferred until after induction, if
that is the course he chooses, whereupon habeas corpus would be
an available remedy, or until defense of the criminal
prosecution which would follow should he press his objections to
his classification to the point of refusing to submit to
induction.
393 U.S. at 258-259.
Petitioners attempt to distinguish Clark on the grounds that (1)
that case involved "military necessity"; (2) the agencies involved
were required to make a large number of individual determinations;
and (3) habeas corpus relief was available. Br. 33. None of those
distinctions is persuasive. First, the government's interest in
protecting the public from the imminent danger of hazardous drugs,
such as Euphoria, poses a "necessity" different in kind but no less
pressing in degree than miliary conscription. See Ewing, 339 U.S. at
599-600. Second, Congress's judgment that pre-enforcement review
would thwart the regulatory process is equally valid here, where there
is a need for immediate regulation of dangerous substances pending
permanent rulemaking. Id. at 601. Third, there is no need for habeas
corpus relief in the present case because the Attorney General's
regulatory action -- which prohibits the sale of an imminently
hazardous substance for a maximum of 18 months, pending completion of
formal rulemaking -- does not directly result in a deprivation of
liberty.
Petitioners fail to identify any substantial liberty interest that
would be served by pre-enforcement review. Petitioners principally
contend that pre-enforcement review is necessary to save individuals
from the "fear and anxiety" (Br. 28-30) of a criminal prosecution. As
petitioners acknowledge (Br. 34), however, pre-enforcement review
would do little to allay the apprehension of criminal prosecution,
because the provision of review, by itself, would not stay the
effectiveness of a scheduling order. Rather, individuals in
petitioners' business can avoid that "fear and anxiety" of criminal
prosecution by curtailing their distribution of substances that the
government has determined to be hazardous during the period of
temporary regulation, presenting their challenges to the government's
determination in the rulemaking proceedings, and then (if necessary)
seeking judicial review of the permanent listing. Thus, the
individuals affected by the Attorney General's temporary scheduling
decisions have an adequate judicial remedy -- one that was not
available to the defendants in Clark -- for obtaining review of the
administrative decision. /38/
II. THE ATTORNEY GENERAL LAWFULLY SUBDELEGATED HIS SECTION 201(h)
AUTHORITY TO THE ADMINISTRATOR OF THE DRUG ENFORCEMENT ADMINISTRATION
Petitioners also contend (Br. 35-38) that their convictions should
be reversed because the Attorney General unlawfully delegated his
authority to schedule controlled substances under Section 201(h) to
the Administrator of the DEA. See 28 C.F.R. 0.100(b). /39/
Petitioners do not argue that there is any constitutional impediment
to that subdelgation, nor do they argue that the delegation regulation
itself is deficient in any respect. Petitioners contend only that
Congress has not empowered the Attorney General to subdelegate his
authority under Section 201(h). In fact, Congress has clearly
authorized that subdelegation of authority.
1. Two relevant statutory provisions authorize the Attorney General
to delegate his powers under Section 201(h) to the Administrator.
First, Section 4(c) of the Act of September 6, 1966, which reorganized
the Department of Justice, provides that the Attorney General "may
from time to time make such provisions as he considers appropriate
authorizing the performance by any other officer, employee, or agency
of the Department of Justice of any function of the Attorney General."
28 U.S.C. 510. Second, Section 501(a) of the Controlled Substances
Act provides that the Attorney General "may delegate any of his
functions under this subchapter to any officer or employee of the
Department of Justice." 21 U.S.C. 871(a). /40/ The Attorney General's
delegation of authority to the Administrator contained in 28 C.F.R.
0.100(b) rests squarely on those statutory provisions. See 52 Fed.
Reg. 24,447 (1987).
Petitioners speculate (Br. 35-38) that Congress intended that the
Attorney General's temporary listing authority would be nondelegable.
The clear, broad, and unqualified terms of both Section 4(c) and
Section 510, however, unambiguously encompass the temporary listing
authority set forth in Section 201(h). Additionally, Section 201(h)
does not impose any limitations on the Attorney General's power to
subdelegate the authority contained therein. Thus, the text of the
relevant statutory provisions provides no basis for the exception
petitioners suggest.
2. Petitioners' suggestion that the Court create an exception for
Section 201(h) is also inconsistent with this Court's decisions
interpreting other statutory delegation provisions. For example, in
Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111 (1947), this
Court upheld the authority of the Administrator of the Emergency Price
Control Act to delegate to district directors his authority to issue
subpoenas. That delegation rested on a general provision of the
statute stating that the Administrator could appoint employees to
carry out his functions and duties under the statute and that any duly
authorized representative of the Administrator may exercise any and
all of his powers. See id. at 120-122. The Court found no indication
in the statute or in its legislative history that Congress intended to
single out the subpoena authority as nondelegable. Ibid. /41/
Petitioners rely on United States v. Giordano, 416 U.S. 505 (1974),
for a different result. That case, however, supports our position.
In Giordano, Congress found from the language of the statute at issue,
Title III of the Omnibus Crime Control and Safe Streets Act of 1968,
18 U.S.C. 2510 et seq., that Congress intended to preclude the
Attorney General from relying on his general delegation authority
under Section 4(c) to subdelegate his authority to apply for a wiretap
order. Section 802 of Title III, 18 U.S.C. 2516 (1970), did not grant
the Attorney General unfettered authority to apply for a wiretap
order, but specifically stated that the authority rested in the
"Attorney General, or any Assistant Attorney General specially
designated by the Attorney General."
The Court accepted the proposition that the Attorney General's
general delegation authority under Section 4(c) would permit the
delegation of all functions previously or thereafter vested in the
Attorney General unless a specific provision restricted that
delegation authority. 416 U.S. at 512-514. The Court concluded,
however, that Congress clearly expressed its intention to supersede
the Attorney General's general delegation authority by specifically
identifying in Section 802 who -- in addition to the Attorney General
-- could authorize a wiretap application. The Court found that
"(t)his interpretation of the statute is also strongly supported by
its purpose and legislative history." Ibid. /42/
Petitioners do not point to anything in the Controlled Substances
Act (or its legislative history) indicating that Congress intended to
prohibit the Attorney General from subdelegating his temporary
scheduling authority. Petitioners simply argue that the authority to
list schedule I substances temporarily "is both so vast and so
unbridled that congressional authority to subdelegate should be very
clear before subdelegation is permitted." Br. 36. As we have
discussed, above, the Section 201(h) scheduling authority is neither
vast nor unbridled. In any event, both Giordano and Fleming indicate
that Congress need not expressly authorize subdelegation when a
general subdelegation provision exists. See Giordano, 416 U.S. at
513-514; Fleming, 331 U.S. at 121. Rather, a restriction on
subdelegation must appear in the statute granting new authority. /43/
There is no such restriction -- and no basis for inferring one -- in
this instance. Accordingly, the Attorney General lawfully delegated
his temporary listing authority (together with the permanent listing
authority) to the Administrator.
CONCLUSION
The judgment of the court of appeals should be affirmed.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
ROBERT S. MUELLER, III
Assistant Attorney General
WILLIAM C. BRYSON
Deputy Solicitor General
JEFFREY P. MINEAR
Assistant to the Solicitor General
RICHARD A. FRIEDMAN
Attorney
MARCH 1991
/1/ Petitioners focus exclusively on how the five schedules affect
the gradation of criminal penalties applicable to illegal possession
or distribution of controlled substances. Pet. Br. 3. Certain of the
regulatory requirements of Sections 301-310 also apply differently to
the five schedules.
/2/ Section 201(c) requires consideration of the following factors
relating to the substance under consideration:
(1) Its actual or relative potential for abuse.
(2) Scientific evidence of its pharmacological effect, if
known.
(3) The state of current scientific knowledge regarding the
drug or other substance.
(4) Its history and current pattern of abuse.
(5) The scope, duration, and significance of abuse.
(6) What, if any, risk there is to the public health.
(7) Its psychic or physiological dependence liability.
(8) Whether the substance is an immediate precursor of a
substance already controlled under this subchapter.
21 U.S.C. 811(c).
/3/ Aggrieved persons would include manufacturers, distributors,
and dispensers subject to the regulatory restrictions of Sections 301
through 310. That class includes petitioners and others who propose
to engage in those activities without complying with the regulatory
restrictions.
/4/ Accordingly, we disagree with petitioners' statements (Br. 5-6,
14 n.9) that Section 202(h) requires only an "imminent hazard"
determination to list a substance in schedule I through expedited
rulemaking. As the court of appeals stated, Section 202(b)(1)'s three
schedule I criteria are "independent of the factors which section
(201(h)) requires the Attorney General to consider in exercising the
designated temporary scheduling power." J.A. 38. The Attorney
General's determination that the drug poses an "imminent hazard,"
however, will generally satisfy the first crierion, while his
determination that there is no FDA exemption or approval in effect for
the drug, see 21 U.S.C. 811(h)(1), will satisfy the second and third
criteria. See Grinspoon v. DEA, 828 F.2d 881, 889 (1st Cir. 1987).
/5/ For the reasons discussed below, at pp. 33-36, Section
201(h)(6) does not preclude a court from determining whether a
designated drug is properly listed as a schedule I substance in the
course of a criminal enforcement proceeding. Accordingly, we disagree
with petitioners' contrary characterizations of the statute. See Pet.
Br. 5, 26-28.
/6/ The Attorney General's 1987 subdelegation was issued in
response to a court of appeals decision holding that the 1973
subdelegation to the Administrator did not encompass the later-enacted
authority conferred by Section 201(h). See United States v. Spain,
825 F.2d 1426 (10th Cir. 1987).
/7/ The (+) prefix indicates that the listed substance is actually
a mixture of two optical isomers. Under the Controlled Substances
Act's definitions, the listing of 4-methylaminorex includes the
substance's individual optical isomers. See CSA Section 102(14), 21
U.S.C. 802(14); 21 C.F.R. 1308.02(c) and 1308.11(f). In addition to
its street name and formal chemical name, 4-methylaminorex is also
identified in pharmacology studies as "U4Euh," "ICE," and "McN-822."
/8/ That decision was based, in part, on a recommendation by the
DEA's Drug Control Section. See 53 Fed. Reg. 40,391. We have
reprinted that recommendation, which is part of the administrative
record, as an appendix to this brief. See App. B, infra.
/9/ In September 1988, Daniel Touby had purchased cyanogen bromide
from the Eastman Kodak Company. In October 1988, Lyrissa Touby had
obtained sodium acetate, sodium carbonate, potassium carbonate, and
norephedrine hydrochloride from a chemical supplier. Expert testimony
established that those chemicals are used to make 4-methylaminorex.
J.A. 49.
/10/ The Ninth Circuit reached the same result in United States v.
Emerson, 846 F.2d 541, 545-546 (1988). The Tenth Circuit has held,
however, that Section 201(h) is an unconstitutional delegation of
legislative power. United States v. Widdowson, 916 F.2d 587, 589-591
(1990).
/11/ The Tenth Circuit has reached the opposite conclusion, holding
that the Section 201(h) authority is nondelegable. United States v.
Widdowson, 916 F.2d at 591-593.
/12/ Because the court found adequate subdelegation authority under
Section 4(c), it did not reach the question whether Section 501(a) of
the Controlled Substances Act, 21 U.S.C. 871(a), provided an
independent basis for such delegation. J.A. 46 n.4.
/13/ Because he believed that Section 201(h) is unconstitutional,
Judge Hutchinson did not reach the question of the statutory validity
of the Attorney General's delegation of his temporary listing
authority to the Administrator of the DEA. J.A. 55 n.1.
/14/ Petitioners also acknowledge (Br. 22 n.14), as recited in
Mistretta, that this Court's application of the "intelligible
principle" test has resulted in rejection of virtually every challenge
to legislation on the ground that it unconstitutionally delegated
legislative power. 488 U.S. at 373-374. See, e.g., Lichter v. United
States, 334 U.S. 742 (1948) (authority to determine excess profits);
American Power & Light Co. v. SEC, 329 U.S. 90 (1946) (authority to
prevent unfair or inequitable distribution of voting power among
security holders); Yakus v. United States, 321 U.S. 414 (1944)
(authority to fix commodity prices at fair and equitable levels); FPC
v. Hope Natural Gas Co., 320 U.S. 591 (1944) (authority to determine
just and reasonable rates) National Broadcasting Co. v. United States,
319 U.S. 190 (1943) (authority to regulate broadcast licensing as
public interest, convenience, or necessity require). The only two
exceptions, Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), and
A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935),
involved a statute in which Congress "failed to articulate any policy
or standard that would serve to confine the discretion of the
authorities to whom Congress had delegated power." Mistretta, 488 U.S.
at 373 n.7.
/15/ A proposed, but not enacted, version of Section 201(h) would
have authorized the Attorney General to list a substance on any
schedule for which it qualified, but would have given the Secretary of
HHS authority to veto the expedited scheduling. See S. 1762, 98th
Cong., 1st Sess. (1983), as reported in S. Rep. No. 225, supra, at
616-617. The enacted version, however authorized the Attorney General
to list temporarily only schedule I substances and eliminated the
Secretary's veto power. The House Committee on the Judiciary
explained:
In examining the particular substances for which the scheduling
action was most necessary, the Subcommittee concluded that
limiting the authority only to substances that have no currently
accepted medical use in treatment addressed both the legitmate
concerns of those in the health care industry and the principal
danger to the public health.
H.R. Rep. No. 835, 98th Cong., 2d Sess. 10 (1984). In short, the
health care industry's concerns were accommodated, and the need for
the Secretary's veto power were eliminated, by limiting the temporary
scheduling authority to schedule I substances. See note 4, supra.
/16/ Other passages of petitioners' brief seem to suggest that
Section 201(h) was intended to regulate only fundamentally new drugs.
See Br. 6 n.3, 14 n.9. Congress recognized, however, that a drug
(such as naturally occurring peyote) may exist long before there
emerges a need -- resulting from the drug's abuse -- to control its
distribution. Hence, there is no requirement that the drug be "newly
designed or created" (Pet. Br. 6 n.3). Instead, to qualify for
temporary listing under Section 201(h), the substance must not already
be listed on any of the schedules, the substance must not be subject
to an exemption or approval under the FDA's new-drug provisions of 21
U.S.C. 355, and the temporary listing of the substance must be
"necessary to avoid an imminent hazard to the public safety." CSA
Section 201(h)(1), 21 U.S.C. 811(h)(1).
/17/ Petitioners rely on statements in Mistretta and Fahey v.
Mallonee, 332 U.S. 245, 250 (1947), that characterize the statute at
issue in Schechter Poultry and Panama Refining as delegating power to
make "federal crimes of acts that never had been such before" and to
create "new crimes in uncharted fields." Fahey, 332 U.S. at 249, 250;
see Mistretta, 488 U.S. at 373 n.7. The point of those statements was
not that a different constitutional standard applies to regulations
with penal consequences, but rather that the delegations at issue in
Schechter Poultry and Panama Refining were unconstitutional because
"Congress had failed to articulate any policy or standard that would
serve to confine the discretion of the authorities to whom Congress
had delegated power." Mistretta, 488 U.S. at 373 n.7 (emphasis added).
/18/ See, e.g., 7 U.S.C. 87b(a)(11), 87c (Department of Agriculture
grain regulations); 7 U.S.C. 2024(b) (Department of Agriculture food
stamp regulations); 15 U.S.C. 78ff (violation of Securities and
Exchange Commission regulations); 15 U.S.C. 2070 (violation of
Consumer Product Safety Commission regulations); 15 U.S.C. 2615(b)
(violation of Environmental Protection Agency toxic substance control
regulations); 15 U.S.C. 3414(c)(2) (violation of Federal Energy
Regulatory Commission natural gas regulations); 16 U.S.C. 773g
(violation of International Pacific Halibut Commission regulations);
19 U.S.C. 1436(c), 1459(g) (violation of Presidential regulations
pertaining to international investment); 29 U.S.C. 666(e) (violation
of Occupational Safety and Health Administration regulations); 30
U.S.C. 1268 (violation of Department of Interior orders); 31 U.S.C.
5322 (violation of Department of Treasury regulations respecting
monetary instruments transactions); 33 U.S.C. 1319, 1415 (violation
of EPA water quality regulations); 42 U.S.C. 4910(a) (violation of
EPA noise control regulations); 42 U.S.C. 6928(d) (violation of EPA
solid waste management regulations); 42 U.S.C. 6992d (violation of
EPA medical waste regulations); 42 U.S.C. 8432 (violation of
Department of Energy regulations); 42 U.S.C. 9603 (violation of EPA
hazardous substance reporting requirements); 43 U.S.C. 1350
(violation of Department of Interior regulations respecting outer
continental shelf leasing); 46 U.S.C. 3718(b) (violation of
Department of the Treasury regulations respecting inspection of
vessels); 49 U.S.C. 521(b)(6), 11903 (violation of Interstate
Commerce Commission requirements).
/19/ Even if delegations involving the creation of novel criminal
liability warranted closer scrutiny, that scrutiny would not be
necessary in this case. As the court of appeals observed, the
Attorney General has had authority since 1970 to identify substances
for permanent placement on schedule I, and the courts have repeatedly
upheld that authority. J.A. 37. Congress, not the Attorney General,
has prescribed the elements of the criminal offenses involving such
substances and has defined the penalities. Thus, the scope of the
Attorney General's delegated authority is quite narrow.
/20/ For example, in United States v. Grimaud, supra, the Court
observed that the Secretary of Agriculture "did not legislate" when he
promulgated criminally enforceable grazing regulations pursuant to the
laws establishing national forests because he "did not go outside of
the circle of that which the act itself had affirmatively required to
be done, or treated as unlawful if done." 220 U.S. at 518. Rather,
the Secretary was fulfilling the executive function "to administer the
law and carry the statute into effect." Ibid.
Similarly, in Monongahela Bridge Co. v. United States, supra, the
Court rejected an unlawful delegation claim in a criminal prosecution
based on the Secretary of War's administrative determination that a
bridge constituted an obstruction to navigation under Section 18 of
the Rivers and Harbors Appropriation Act of 1899, ch. 425, 30 Stat.
1151. 216 U.S. at 192. Justice Harlan stated for the Court that the
Secretary "could not be said to exercise strictly legislative or
judicial power" where he simply determines, pursuant to congressional
directive, "some facts or some state of things upon which the
enforcement of (a statute) may depend." Id. at 193.
The Court reached the same result under similar facts in Union
Bridge Co. v. United States, 204 U.S. at 386 ("In performing that duty
the Secretary of War will only execute the clearly expressed will of
Congress, and will not, in any true sense, exert legislative or
judicial power."). See also, e.g., Field v. Clark, 143 U.S. at 694
("The legislature cannot delegate its power to make a law; but it can
make a law to delegate a power to determine some fact or state of
things upon which the law makes, or intends to make, its own action
depend."); In re Kollock, 165 U.S. at 533 ("The regulation was in
execution of, or supplementary to, but not in conflict with, the law
itself, and was specifically authorized thereby in effectuation of the
legislation which created the offense."); Cargo of the Brig Aurora v.
United States, 11 U.S. (7 Cranch) 382, 388 (1813) ("we can see no
sufficient reason, why the legislature should not exercise its
discretion * * * either expressly or conditionally, as their judgment
should direct").
/21/ Compare, e.g., 15 U.S.C. 2605(d) (authorizing the
Administrator of the Environmental Protection Agency to impose
immediate restrictions on the manufacture of toxic substances that
pose an unreasonable risk of serious or widespread injury); 21 U.S.C.
355(e) (authorizing the Secretary of Health and Human Services to
suspend approval of new drugs upon finding an imminent hazard to
public health health); 29 U.S.C. 655(c) (authorizing the Secretary of
Labor to promulgate emergency temporary occupational safety
standards); 30 U.S.C. 811(b) (authorizing the Secretary of Labor to
promulgate emergency temporary mine safety standards). See also note
18, supra.
/22/ The Constitution does not create a Department of Justice and a
separate Department of Health and Human Services. Under the
constitutional scheme, Congress could create a Department of Justice,
Health, and Human Services, headed by a single official. Or, it could
make all of the Executive Branch departments subunits within a single
entity headed by one officer of the United States acting under the
direction of the President. Nothing in the Constitution would
prohibit such a scheme, as long as the President remained supreme over
the Executive Branch. Because the functions of different departments
could be performed by a single department without violating separation
of powers principles, it makes no sense to say that separation of
powers principles are offended if the executive functions of
scheduling and enforcement are performed within a single department,
rather than separate departments within the Executive Branch.
/23/ While the Attorney General supervises both the U.S. Attorneys
and the DEA Administrator, it likewise can be said that the President
supervises every agency that promulgates criminally enforceable
regulations and also supervises the criminal enforcement of those
regulations. Thus, the potential for abuse that petitioners posit
theoretically exists in every case where a regulation may serve as the
predicate for a criminal offense.
/24/ Petitioners concede (Br. 15), that Congress can combine
regulatory and civil enforcement functions in a single agency. See,
e.g., American Power & Light Co. v. SEC, 329 U.S. at 104-106;
National Broadcasting Co. v. United States, 319 U.S. at 225-226. The
principle that sustains that result is equally applicable here: the
executive official acts pursuant to legislative direction, and his
exercise of discretion is subject to judicial oversight at the
conclusion of the rulemaking (see National Broadcasting Co., 319 U.S.
at 193) or in subsequent enforcement proceedings (see American Power &
Light Co., 329 U.S. at 96, 105-106).
/25/ See, e.g., United States v. Alexander, 673 F.2d 287 (9th
Cir.), cert. denied, 459 U.S. 876 (1982); United States v. Barron,
594 F.2d 1345 (10th Cir.), cert. denied, 441 U.S. 951 (1979); United
States v. Gordon, 580 F.2d 827 (5th Cir.), cert. denied, 439 U.S. 1051
(1978); United States v. Roya, 574 F.2d 386 (7th Cir.), cert. denied,
439 U.S. 857 (1978); United States v. Pastor, 557 F.2d 930 (2d Cir.
1977). The statutory criteria governing a Section 201(h) temporary
scheduling are as specific as -- and the penalties for violations are
no more stringent than -- those governing permanent scheduling.
/26/ See, e.g., United States v. Koopmans, 757 F.2d 901 (7th Cir.
1985); United States v. Chatman, 538 F.2d 567 (4th Cir. 1976);
United States v. Park, 521 F.2d 1381 (9th Cir. 1975); United States
v. Berrigan, 482 F.2d 171 (3d Cir. 1973); Carter v. United States,
333 F.2d 354 (10th Cir. 1964).
/27/ As another example, Congress has granted the Attorney General
rulemaking authority respecting aliens and nationality, 8 U.S.C.
1103(a), and violation of such regulations may be the predicate for
criminal enforcement, see 8 U.S.C. 1324(a).
/28/ Section 507 of the Controlled Substances Act specifically
states that "any person aggrieved by a final decision of the Attorney
General may obtain review of the decision in the United States Court
of Appeals for the District of Columbia or for the circuit in which
his principal place of business is located." 21 U.S.C. 877. That
provision grants a person the right to seek review of a final
determination to list a substance permanently on one of the controlled
substances schedules. See, e.g., Grinspoon v. DEA, 828 F.2d 881 (1st
Cir. 1987); Reckitt & Colman, Ltd. v. DEA, 788 F.2d 22 (D.C. Cir.
1986).
/29/ Cf. McGee v. United States, 402 U.S. 479, 483 (1971) (noting
that resourse to the administrative process may cure or render moot
the defects later complained of in court). The House Committee on the
Judiciary explained that the limitation on judicial review in Section
201(h)(6) "conforms to the general practice for temporary, emergency
orders such as this procedure." H.R. Rep. No. 835, supra, at 13. For
example, the Toxic Substances Control Act provides that a rule
respecting toxic substances may be made immediately effective for the
interim period between its proposal in the Federal Register and final
action on the proposal if activities respecting the substance are
"likely to result in an unreasonable risk of serious or widespread
injury to health or the environment" and immediate effectiveness of
the rule "is necessary to protect the public interest." 15 U.S.C.
2605(d)(2)(A). Such emergency rules "shall not, for purposes of
judicial review, be considered final agency action." Ibid. Similarly,
the FDA may issue an immediate ban on a dangerous medical device if
the device "presents an unreasonable, direct, and substantial danger
to the health of individuals," 21 U.S.C. 360(b), and such a temporary
regulation is not subject to judicial review until it has been
finalized after completed rulemaking proceedings, 21 U.S.C.
360g(a)(5).
/30/ Petitioners did not seek review of the Attorney General's
scheduling decision either during or after completion of the permanent
rulemaking, nor do they argue that Euphoria was improperly listed as a
Schedule I substance. See J.A. 33. Thus, Section 201(h)(6)'s
preclusion of judicial review did not affect them in any way. For
that reason it is questionable whether petitioners have standing to
challenge the constitutionality of that provision. Even if they have
standing, petitioners would be entitled to reversal of their
convictions based on their challenge to the effect of Section
201(h)(6) only if that paragraph were deemed non-severable from the
remainder of the subsection. See 28 U.S.C. 2111.
/31/ See generally Cramton, Nonstatutory Review of Federal
Administrative Action: The Need For Statutory Reform of Sovereign
Immunity, Subject Matter Jurisdiction, And Parties Defendant, 68 Mich.
L. Rev. 387 (1970) (describing the evolution of sovereign immunity and
its exceptions).
/32/ See, e.g., Boyce Motor Lines, Inc. v. United States, 342 U.S.
337 (1952) (criminal enforcement of an ICC regulation); Estep v.
United States, 327 U.S. 114 (1946) (criminal enforcement of Selective
Service designation); Monongahela Bridge Co. v. United States, supra
(criminal enforcement of the Secretary of War's determination that a
bridge obstructed navigation); Union Bridge Co. v. United States,
supra (same). The APA also incorporates that general rule, providing
that "(e)xcept to the extent that prior, adequate, and exclusive
opportunity for judicial review is provided by law, agency action is
subject to judicial review in civil or criminal proceedings for
judicial enforcement," 5 U.S.C. 703. That provision simply "restates
existing law." U.S. Dep't of Justice, Attorney General's Manual on the
Administrative Procedure Act 99 (1947). See also Administrative
Procedure in Government Agencies, S. Doc. No. 8, 77th Cong., 1st Sess.
115 (1941).
/33/ See McNary v. Haitian Refugee Center, Inc., No. 89-1332, slip.
op. 16 (Feb. 20, 1991) (it "is presumable that Congress legislates
with knowledge of * * * our well-settled presumption favoring
interpretations of statutes that allow judicial review of
administrative action"). See also, e.g., Bowen v. Michigan Academy of
Family Physicians, 476 U.S. 667, 670 (1986); Califano v. Sanders, 430
U.S. 99, 109 (1977); Dunlop v. Bachowski, 421 U.S. 560, 567 (1975);
Johnson v. Robison, 415 U.S. 361, 373-374 (1974).
/34/ See, e.g., Clean Air Act, Section 307(b)(2), 42 U.S.C.
7607(b)(2) (providing that EPA action that is reviewable under Section
307(b)(1) "shall not be subject to judicial review in civil or
criminal proceedings for enforcement").
/35/ In other contexts, this Court has been unwilling to deny
judicial inquiry into the legality of an administrative regulation in
a criminal enforcement proceeding where Congress has not unambiguously
precluded such inquiry. For example, in Estep v. United States, 327
U.S. 114 (1946), this Court held that a draftee who faced criminal
prosecution for refusing to submit to military induction could raise
the defense that the draft board's actions were lawless and outside
its jurisdiction, despite a statutory provision rendering the
decisions of the local draft boards "final" except for available
administrative review. The Court stated that courts presumptively
have the power to review administrative action when exercising "the
general jurisdiction which Congress has conferred upon them." Id. at
119-120. Although noting that "except when the Constitution requires
it, judicial review of administrative action may be granted or
withheld as Congress chooses," ibid., the Court stated that it would
not "readily infer that Congress departed so far from the traditional
concepts of a fair trial when it made the actions of the local boards
'final' as to provide that a citizen of this country should go to jail
for not obeying an unlawful order of an administrative agency," id. at
122. See also Adamo Wrecking Co. v. United States, 434 U.S. 275, 285
(1978) (interpreting Clean Air Act Section 307(b)(2)).
/36/ In Ewing, the Court rejected a manufacturer's claim that he
was entitled under the Due Process Clause to pre-enforcement review of
a determination that vitamin products were misbranded and subject to
seizure, observing that "it has never been held that the hand of
government must be stayed until the courts have an opportunity to
determine whether the government is justified in instituting suit in
the courts." 339 U.S. at 599. The Court observed that if the
administrative determination were subject to preenforcement review,
the "means which Congress provided to protect consumers against the
injurious consequences of protracted proceedings would then be
seriously impaired." Id. at 601.
/37/ See, e.g., Witmer v. United States, 348 U.S. 375, 377 (1955)
(noting that there "is no direct judicial review" of a military
induction determination). See also, e.g., APA, 5 U.S.C. 701(a)(1)
(recognizing that statutes may preclude judicial review entirely);
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended, 42 U.S.C. 9613(h) (precluding preenforcement
review of government hazardous substance clean-up remedies); note 29,
supra.
/38/ As the record in this case indicates, parties who distribute
drugs illicitly are not likely in any event to avail themselves of
pre-enforcement judicial review. Petitioners have not questioned the
merits of the government's decision to schedule Euphoria. They did
not submit comments in the Section 201(a) or the Section 201(h)
rulemakings respecting the drug, and they have never pretended to be
legitimate drug manufacturers or distributors.
/39/ The Attorney General's subdelegation regulation provides that
"(t)he following-described matters are assigned to, and shall be
conducted, handled, or supervised by, the Administrator of the Drug
Enforcement Administration":
(b) Functions vested in the Attorney General by the
Comprehensive Drug Abuse Prevention and Control Act of 1970, as
amended. This will include functions which may be vested in the
Attorney General in subsequent amendments to the Comprehensive
Drug Abuse Prevention and Control Act of 1970, and not otherwise
specifically assigned or reserved by him.
28 C.F.R. 0.100(b).
/40/ That subchapter includes Sections 101 through 709 of the
Controlled Substances Act, 21 U.S.C. 801-904.
/41/ The Court distinguished a previous decision, Cudahy Packing
Co. v. Holland, 315 U.S. 357 (1942), holding that the subpoena
authority under the Fair Labor Standards Act of 1938, ch. 676, Section
4(b), 52 Stat. 1061-1062, did not authorize the Administrator to
delegate his power under that Act to sign and issue subpoenas. The
Court observed that the legislative history of the Act revealed that a
provision authorizing subdelegation of the subpoena authority had been
eliminated from the bill in the conference committee. Fleming, 331
U.S. at 120. Moreover, the statute considered in Cudahy specifically
identified the powers to gather data and to make investigations as
delegable, and therefore by implication indicated that powers not
specified were intended to be nondelegable. 331 U.S. at 121.
/42/ A previous version of the relevant provision that allowed
delegation to an officer of the Department of Justice was changed to
the enacted version in response to the specific concern that the
authority to authorize wiretap applications should be limited. 416
U.S. at 516-517. The legislative history in other respects reflected
Congress's understanding that the authority to authorize wiretap
applications was to be limited to the persons identified in Section
802. See 416 U.S. at 518-522.
/43/ On other occasions, when Congress has sought to restrict the
Attorney General's authority to subdelegate his powers, Congress has
specifically limited the subdelegation authority. See, e.g., 18
U.S.C. 245(a)(1) (certain prosecutions under the Civil Rights Act of
1968 are authorized only on the certification of "the Attorney
General, the Deputy Attorney General, the Associate Attorney General,
or any Assistant Attorney General specially designated by the Attorney
General * * * which function of certification may not be delegated");
18 U.S.C. 1073 (prosecutions for flight to avoid prosecution or to
avoid giving testimony may be initiated "only upon formal approval in
writing by the Attorney General, the Deputy Attorney General, the
Associate Attorney General or an Assistant Attorney General of the
United States, which function of approving prosecutions may not be
delegated"); 18 U.S.C. App. at 711 (Section 14) (functions of the
Attorney General under the Classified Information Procedures Act "may
be exercised by the Deputy Attorney General, the Associate Attorney
General, or by an Assistant Attorney General designated by the
Attorney General for such purpose and may not be delegated to any
other official"). With respect to other government agencies, Congress
likewise has frequently, and explicitly, identified the authorities
for which delegation is restricted. See, e.g., 5 U.S.C. 3312(b),
3318(b)(4), 3504(b); 10 U.S.C. 809(c), 1370(a)(2), 1587(d), 1622(d),
1623(c), 2304(d)(2), 2356(a), 2435(c)(2); 12 U.S.C. 3502(c); 31
U.S.C. 1344(d)(3), 3553(e); 38 U.S.C. 5025(b)(3)(C); 40 U.S.C.
759(d)(1); 41 U.S.C. 10b-1(e), 253(d)(2), 421(d), 423(d)(7)(B); 42
U.S.C. 8374(e), 8511(f), 8513(g), 8521(c)(4); 49 U.S.C. 322(b).
APPENDIX